Bali nine: Indonesia's credibility is at stake with decision

Frustratingly, arguments about the immorality of the death penalty have fallen on deaf ears in Jakarta. The same can be said for the equally compelling assertion that killing Andrew Chan and Myuran Sukumaran is counterproductive because the men have become net-contributors to Indonesia being both model prisoners and mentors to other lost souls.

One reason that this "reformed character" argument has not bitten is an abiding misconception that the Indonesian penal system, and particularly its treatment of drug traffickers, was ever built around the concept of rehabilitation.

You don't execute people who you are trying to reform. Yet the unique example of Sukumaran and Chan shows why the judicial and penal system can be elevated and indeed why it must be.

Advertisement

More urgently, their execution points up a gaping legal and logical mistake at the heart of the court's original ruling of death-by-firing-squad. In essence, the sentence has turned out to be wrong as a matter of fact and therefore arguably, would now be wrong as a matter of law if carried out.

We can say this because of the lived experience of Chan and Sukumaran since sentencing. In short, while they are guilty of the offence for which they were surrendered by an unthinking Australian Federal Police, they have proved the judges' assessment of their human worth to be grievously wrong.

By definition, jurisdictions retaining the death penalty believe some crimes are so serious that the perpetrators are beyond redemption and are of zero human value.

Capital punishment is thus, just that – the ultimate and irrevocable sanction of deletion from existence. No possibility of repentance, corrective behaviour, or any future contribution is contemplated. Indeed, the conclusion is that the crimes are so serious and the perpetrators so fundamentally flawed, that no rehabilitation is even possible.

This is where the court's original decision on February 14, 2006 was wrong as a matter of fact.

Irrespective of how it came about, the reality is that at the moment of writing this piece, Chan and Sukumaran are not merely alive but have emerged as massively improved people – products of their own moral growth, unexpected inner resources, and perhaps even the unintended positive consequences of the Indonesian correctional system.

However unlikely, their profound moral and social rebirth is no longer a matter of the 2006 court's conjecture. A decade on, their improvement has become undeniable, observable fact rendering previous assumptions about this life-or-death prediction, completely worthless. What authorities could not know then, they cannot claim to be unaware of now.

Whether by good luck or design, the judicial arm and the executive arm (the Attorney-General and the President) now have custody of facts not available to the court in 2006 when the decision to end the Australians' lives was handed down.

This consideration is quite apart from the President's unexplained failure to read each clemency application separately as required by law, and the urgent but untested allegation of corruption at the initial trial going to the very question of the death penalty.